Joint Appendix — Johnson v. United States

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FILED

NOY 1285)

No. 99-5153

OFFICE OF THE CLERK

In The

Supreme Court of the United States

CORNELL JOHNSON,

Petitioner,

UNITED STATES,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

JOINT APPENDIX

Lean J. Prewitt *SetH P. WAXMAN

*Rita C. LaLumia Solicitor General

Davip F. Ness Department of Justice

Federal Defender Washington, DC 20530

Services of Eastern Telephone: (202) 514-2217

Tennessee, Inc. Fax: (202) 514-2255

707 Georgia Avenue, Counsel for Respondent

Suite 203

Chattanooga, TN 37402

Telephone: (423) 756-4349

Fax: (423) 756-4345

Counsel for Petitioner

*Counsel of Record

Petition For Certiorari Filed July 2, 1999

Certiorari Granted October 18, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Relevant Docket Entries

Indictment

Plea Agreement

Judgment and Commitment

Petition for Warrant Or Summons for Offender

Under Supervision

Hearing on Revocation Proceedings, April 30,

1998, (Tr. pp.1-10)

Dispositional Report

Judgment for Revocation of Supervised Release

Order Affirming District Court’s Judgment of the

United States Court of Appeals for the Sixth

Circuit, April 29, 1999

Order of the Supreme Court of the United States

—s certiorari and leave to proceed in

orma pauperis, October 18, 1999

Date

1993

Oct. 26

Dec. 15

1994

March 8

1998

March 5

April 30

May 1

May 5

RELEVANT DOCKET ENTRIES

Proceedings

Indictment filed

Plea Agreement filed

Judgment and Commitment

Petition for Warrant or Summons for Offender

Under Supervision

Supervised Release Revocation Hearing

Dispositional Report filed

Judgment for Revocation of Supervised

Release

Notice of Appeal by Defendant filed

Order Judgment of the United States Court of

Appeals for the Sixth Circuit Affirming the

District Court’s Judgment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

UNITED STATES OF

AMERICA

Vv.

SEAN ANTHONY

JESSIE; CORNELL

JOHNSON; and BRICE

WILLIAM MYLES

CR-1-93-138

Edgar

ce eee eee ee”

INDICTMENT

(Filed Oct. 26, 1993)

COUNT ONE

The Grand Jury charges that on or about October 22,

1993, in the Eastern District of Tennessee and elsewhere,

the defendants, SEAN ANTHONY JESSIE, CORNELL

JOHNSON, and BRICE WILLLIAM MYLES, did conspire

with each other and others to the Grand Jury unknown,

to commit an offense under 18 U.S.C. § 1029(a), that is,

the defendants did knowingly and with intent to defraud

produce, use and traffic in one or more counterfeit access

devices, which conduct affected interstate commerce, and

did engage in conduct in furtherance of that offense; all

in violation of 18 U.S.C. 1029(b)(2).

COUNT TWO

The Grand Jury further charges that on or about

October 22, 1993, in the Eastern District of Tennessee and

elsewhere, the defendants, SEAN ANTHONY JESSIE,

Pe Per Pew +

CORNELL JOHNSON, and BRICE WILLLIAM MYLES,

knowingly and with intent to defraud attempted to pro-_

duce, use and traffic in one or more counterfeit access

devices, which conduct affected interstate commerce, in

violation of 18 U.S.C. 1029(a)(1); all in violation of 18

U.S.C. § 1029(b)(1).

A TRUE BILL:

/s/ Rebecca Illegible

GRAND JURY FOREMAN

/s/ Carl K. Kirkpatrick

CARL K. KIRKPATRICK

United States Attorney

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

UNITED STATES OF

AMERICA

Vv.

CORNELL JOHNSON

)

) CR-1-93-138

)

PLEA AGREEMENT

(Filed Dec. 15, 1993)

Pursuant to Rule 11 of the Federal Rules of Criminal

Procedure, the United States of America, by Carl K.

Kirkpatrick, United States Attorney for the Eastern Dis-

trict of Tennessee, and the defendant, CORNELL JOHN-

SON, and his attorney, C. Leland Davis, have agreed

upon the following:

The defendant will plead guilty to Count One of the

indictment, charging him with a violation of 18 U.S.C.

§ 1029.

Pursuant to Rule 11(e)(1)(A), Federal Rules of Crimi-

nal Procedure, the United States agrees that it will move

the court at the time of sentencing to dismiss Count Two.

Pursuant to Rule 11(e)(1)(C), Federal Rules of Crimi-

nal Procedure, the parties agree that the appropriate dis-

position of this case would be a sentence within the lower

one-third of the applicable sentencing guideline range as

to any fine and imprisonment.

The defendant agrees to make full and complete res-

titution to any victims in this case in such amounts and in

such manner as the court may determine.

Po ARAC™ oIth < R6 Ne O Rp

Sich Sone aha Atlin oe De a

The special assessment of $50 per count shall be paid

no later than the day of the plea proceeding.

The defendant acknowledges that he understands

that his case is governed by the sentencing guidelines,

and that he has discussed the guidelines with his attor-

ney. In consideration of the United States’ acceptance of

this agreement, the defendant expressly waives the right

to appeal his conviction or sentence on any ground,

including any appeal right conferred by 18 U.S.C. § 3742.

The defendant further agrees not to file any motions or

pleadings pursuant to 28 U.S.C. § 2255. Thus, the defen-

dant knowingly, intentionally, and voluntarily waives his

right to collaterally attack the plea being offered in the

instant case. The defendant further acknowledges that a

breach of this clause of the plea agreement (like the

defendant's breach of any other clause of the plea agree-

ment) would leave the United States free to withdraw

from the plea agreement.

Based upon the evidence presently available to the

parties, the parties view this case as one where the defen-

dant has accepted responsibility for his involvement in

this offense.

Should the defendant withdraw from this plea agree-

ment for any reason, any statement made by the defen-

dant subsequent to his signing this plea agreement may

be used for any purpose by the United States.

By his signature to this agreement, the defendant

acknowledges that he has discussed with his attorney

each provision of this agreement and understands the

potential consequences of each provision of this agree-

ment.

The parties further agree that this plea agreement

constitutes the full and complete agreement and under-

standing between the parties concerning the defendant's

guilty plea to the above-referenced charge, and that there

are no other agreements, promises, undertakings, or

understandings between the defendant and the United

States.

CARL K. KIRKPATRICK

United States Attorney

/s/ Gary S. Humble

Gary S. Humble

Assistant U.S. Attorney

/s/ Cornell Johnson 11/30/93

Cornell Johnson Date

Defendant

/s/ C. Leland Davis 11/30/93

C. Leland Davis Date

Attorney for Defendant

Ee hs at

PTA yt .

UNITED STATES DISTRICT COURT

EASTERN District of TENNESSEE

UNITED STATES

OF AMERICA

CORNELL JOHNSON

(Name of Defendant)

THE DEFENDANT:

JUDGMENT IN A

CRIMINAL CASE

(For Offenses Committed

On or After

November 1, 1987)

(Filed Mar. 8, 1994)

Case Number:

CR-1-93-00138-002

C. Leland Davis, c/o

District Attorney’s Office

600 Market Street

Chattanooga, TN 37402

Appointed Counsel

Defendant's Attorney

[X] pleaded guilty to countts) One (1) of the Indictment

[ ] was found guilty on count(s)

after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of such

count(s), which involve the following offenses:

Date

Title & Nature of Offense Count

Section Offense Concluded Numbers

18: Did conspire to commit Oct. 22, 1993 Count

1029(b)(2) an offense under 18 One (1)

USC Section 1029(a),

that is, knowingly with

intent to defraud pro-

duce, use and traffic in

one or more counterfeit

access devices, which

conduct affected inter-

state commerce, and

did engage in conduct

in furtherance of that

offense.

The defendant is sentenced as provided in pages 2

through 5 _ of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

{ ] The defendant has been found not guilty on count(s)

and is discharged as to such

count(s).

{X] Countts} Two (2) (is)(are) dismissed on

the motion of the United States.

{X] It is ordered that the defendant shall pay a special

assessment of $50.00 , for count(s) One (1) of

the Indictment , which shall be due [X] imme-

diately | |] as follows:

IT IS FURTHER ORDERED that the defendant shall

notify the United States attorney for this district within

30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

Defendant’s Soc. Sec. No.: Monday, February 28,

250-04-0337 1994

Defendant's Date of Birth: Date of eg of

May 9, 1954 ntence

Defendant’s Mailing /s/ R. Allan pager

Signature of Judicial

Address: Offi

1762 N. Springdale Place =

Florence, SC 29506 R. ALLAN EDGAR,

, UNITED STATES

Detendant s Residence DISTRICT JUDGE

Address: N & Title of ludicial

1762 N. Springdale Place said poo oF Judicia

Florence, SC 29506 _—

3/8/94

Date

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for

a term of Twenty-five (25) months upon Count One (1) of

the Indictment

{ ] The court makes the following recommendations to

the Bureau of Prisons:

[X] The defendant is remanded to the custody of the

United States marshal.

{ ] The defendant shall surrender to the United States

Marshal for this district.

[ ] at a.m./p.m. on

[ ] as notified by the United States marshal.

{ ] The defendant shall surrender for service of sen-

tence at the institution designated by the Bureau of

Prisons.

{ ] before 2 p.m. on :

[ ] as notified by the United States marshal.

[ ] as notified by the probation office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to _at

, with a ceriified copy of this judgment.

United States Marshal

Deputy Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of Three (3) years

upon Count One (1) of the Indictment.

While on supervised release, the defendant shall not

commit another federal, state, or local crime and shall not

illegally possess a controlled substance. The defendant

shall comply with the standard conditions that have been

adopted by this court (set forth below). If this judgment

imposes a restitution obligation, it shall be a condition of

supervised release that the defendant pay any such resti-

tution that remains unpaid at the commencement of the

term of supervised release. The defendant shall comply

with the following additional conditions:

[X] The defendant shall report in person to the proba-

tion office in the district to which the defendant is

released within 72 hours of release from the custody

of the Bureau of Prisons.

[X] The defendant shall pay any fimes/restitution that

remain unpaid at the commencement of the term of

supervised release.

{X] The defendant shall not possess a firearm or

destructive device.

The defendant shall provide the probation officer

with access to any requested financial information.

The defendant shall not incur new credit charges or

open additional lines of credit without the approval

of the probation officer unless the defendant is in

compliance with the installment payment schedule.

The defendant shall participate in a program of test-

ing and/or treatment for drug and/or alcohol

abuse, as directed by the probation officer, until

such time as he is released from the program by the

probation officer.

The defendant shall participate in a program of

mental health treatment as directed by the probation

officer, until such time as he is released from the

program by the probation officer.

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on supervised release pur-

suant to this judgment, the defendant shall not commit

another federal, state or local crime. In addition:

1) the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

2) the defendant shall report to the probation officer as

directed by the court or probation officer and shall

submit a truthful and complete written report within

the first five days of each month;

3) the defendant shall answer truthfully all inquiries

by th» probation officer and follow the instructions

of the probation officer;

4) the defendant shall support his or her dependents

and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occu-

pation unless excused by the probation officer for

schooling, training, or other acceptable reasons;

6) the defendant shall notify the probation officer

within 72 hours of any change in residence or

employment;

7) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use, distrib-

ute, or administer any narcotic or other controlled

substance, or any paraphernalia related to such sub-

stances, except as prescribed by a physician;

8) the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distrib-

uted, or administered;

ee ee

10)

11)

12)

13)

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless

granted permission to do so by the probation officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view by the probation officer;

the defendant shall notify the probation officer

within seventy-two hours of being arrested or ques-

tioned by a law enforcement officer;

the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

enforcement agency without the permission of the

court;

as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant’s criminal record or per-

sonal history or characteristics, and shall permit the

probation officer to make such notifications and to

confirm the defendant's compliance with such noti-

fication requirement.

RESTITUTION AND FORFEITURE

RESTITUTION

[X] The defendant shall make restitution to the follow-

ing persons in the following amounts:

Name of Payee Amount of Restitution

Food Lion, Incorporated $ 663.96

Attn: Check Recovery

P. O. Box 1549

Salisbury, NC 28145-1549

Western Union $3,000.00

Attn: Ruth Williams

Western Union Financial

Services

13022-A Hollenberg Drive

Bridgeton, MO 63044 TOTAL $3,663.96

Any payment made that is not payment in full shall be

divided proportionately among the payees named above.

Payments of restitution are to be made to:

| ] the United States Attorney for transfer to the

payee(s).

[X] the payee(s), through the office of the U. S. Dis-

trict Court Clerk

Restitution shall be paid:

[X] in full immediately.

[ ] in full not later than

{ ] in equal monthly installments over a period of

____ months. The first payment is due on the date

of this judgment. Subsequent payments are due

monthly thereafter.

{ ] in installments according to the following sched-

ule of payments:

Any payment shall be divided proportionately among the

payees named unless otherwise specified here.

FORFEITURE

[ ] The defendant is ordered to forfeit the following

property to the United States:

STATEMENT OF REASONS

[X] The court adopts the factual findings and guideline

application in the presentence report.

{ ]} The court adopts the factual findings and guideline

application in the presentence report except (see

attachment, if necessary):

Guideline Range Determined by the Court:

Total Offense Level: 11

Criminal History Category: Vv

Imprisonment Range: 24 to 30 months

Supervised Release Range: 2 to 3 _ years

Fine Range: $ 2,000.00 to $ 20,000.00

[X] Fine is waived or is below the guideline

range because of the defendant's inability to pay.

Restitution: $ 3,663.96

{ ] Full restitution is not ordered for the fol-

lowing reason(s):

[X] The sentence is within the guideline range, that

range does not exceed 24 months, and the court

finds no reason to depart from the sentence called

for by application of the guidelines.

{ ] The sentence is within the guideline range, that

range exceeds 24 months, and the sentence is

imposed for the following reason(s):

The sentence departs from the guideline range.

[ ] upon motion of the government, as a result of

defendant’s substantial assistance.

{ ] for the following reason(s):

* * *

United States District Court

for

Eastern District of Tennessee

Petition for Warrant or Summons

for Offender Under Supervision

(Filed Mar. 5, 1998)

Case Number: CR-1-93-138-002

Name of Offender: Cornell Johnson

Name of Sentencing Judicial Officer:

Honorable R. Allan Edgar

Date of Original Sentence: 02/28/94

Original Offense: Conspiracy to Produce, Use and Traffic

in Counterfeit Access Devices in violation of Title 18

U.S.S.C. § 1029(b)(2)

Class: D Felony Criminal History Category: V

Original Sentence: Twenty-five month term of incarcera-

tion to be followed by a three year term of supervised

release with the conditions that 1) The defendant pay

restitution in the amount of $663.96 to Food Lion, Inc. of

Salisbury, N.C. and $3000 to Western Union of Bridgeton,

MO, for a total of $3663.96, 2) The defendant provide the

probation officer with access to any requested financial

information, 3) The defendant not incur any new lines of

credit or open additional lines of credit without the

approval of the probation officer unless the defendant is

in compliance with the installment payment schedule, 4)

The defendant participate in a program of testing and/or

drug treatment as directed by the probation officer, until

such time as he is released from the program by the

probation officer, 5) The defendant participate in a pro-

gram of mental health treatment as directed by the proba-

tion officer, until such time as he is released from the

program by the probation officer.

Type of Supervision: Supervised Release

Date Supervision Commenced: Date Supervision Expires:

08/14/95 08/13/98

Assistant U.S. Attorney: Defense Attorney:

Gary Humble C. Leland Davis

PETITIONING THE COURT

[X] To issue a warrant

{ ] To issue a summons

The probation officer believes that the offender has vio-

lated the following condition(s) of supervision:

Violation Number Nature of Noncompliance

I VIOLATION OF GENERAL CON-

DITIONS OF SUPERVISION: The

defendant shall not commit another

federal, state or local crime.

According to U.S. Probation Officer, Joe Barton, Atlanta,

Georgia, Mr. Cornell Johnson was arrested on 03/03/96,

by the Newport News, Virginia Police Department and

charged with three counts of Forgery and three counts of

Uttering a Forged Instrument in violation of Virginia

State Code § 18.2-172, after attempting to pass a counter-

feit payroll check, using a ficticious [sic] name and identi-

fication card issued by the State of Virginia, to a Food

Lion food store, located in Newport News. This consti-

tutes a violation of the offender’s conditions of super-

vised release.

According to Detective Linda Spruill, of the Newport

News, Virginia Police Department, Johnson is now being

held in the Newport News city jail without bond.

II VIOLATION OF STANDARD

CONDITION #1: The defendant

shall not leave the judicial district

without the permission of the Court

or probation officer.

Cornell Johnson traveled outside the Northern District of

Georgia, which is the district of supervision at this time,

without written travel authorization from the probation

office. This unauthorized travel is evidenced by johnson’s

arrest in Newport News, Virginia on March 3, 1996, for

Forgery and Uttering a Forged Instrument.

U.S. Probation Officer Recommendation: That a warrant

be issued and the defendant be ordered to appear in

court, before Honorable R. Allan Edgar for a hearing to

determine whether the term of supervision should be

revoked.

Respectfully submitted by,

/s/ Don Johnson

Donald E. Johnson

U.S. Probation Officer

Date: March 5, 1996

APPROVED BY:

/s/ Leslie A. Cory 3-5-96

Leslie A. Cory, Date:

Supervising U.S. Probation Officer

ORDER OF COURT;

A warrant is to be issued and the defendant is ordered to

appear in Court for a hearing to determine whether the

term of supervision should be revoked.

So ordered.

ENTER.

/s/ John Y. Powers

The Honorable John Y. Powers

3-5-96

Date

[p. 1] IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

UNITED STATES OF

AMERICA,

CR-1-93-138

(Filed May 18, 1998)

Plaintiff,

-versus-

CORNELL JOHNSON,

Defendant.

Chattanooga, Tennessee

April 30, 1998

BEFORE: THE HONORABLE R. ALLAN EDGAR

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

JOHN MacCOON, ESQ,, |

Assistant United States Attorney

1110 Market Street, Suite 301

Chattanooga, Tennessee 37402

FOR THE DEFENDANT:

PERRY H. PIPER, ESQ.,

Federal Defender Services

Flatiron Building, Suite 203

Chattanooga, Tennessee 37402

REVOCATION HEARING

VOLUME I

PAGES 1 through 10

[p. 2} THE CLERK: Criminal Action 1-93-138,

United States of America versus Cornell Johnson.

THE COURT: Okay. Mr. Johnson, it’s been

alleged here that you have violated the terms of your

supervised release and there is a petition to revoke that

supervised release before the Court. Are you aware of

that?

THE DEFENDANT: Yes, sir.

THE COURT: And it’s charged here that you

have violated the condition of your supervised release

which provides that you shall not commit another fed-

eral, state or local crime. And it’s also alleged that you

violated the condition you should not leave the judicial

district without the permission of the Court or the appli-

cable probation officer. And, essentially, as I understand

it, the allegation is that you left, I think you were being

supervised in Georgia at the time in Georgia, and you left

there and went up to Virginia and committed some crimi-

nal offenses of which you were convicted. That’s what the

allegation is.

Mr. Piper, I guess I'll ask you first what your client's

position is with respect to whether or not he has violated

the terms of his supervised release?

MR. PIPER: We admit as to both violations,

Judge.

THE COURT: Okay. Is that correct, Mr. John-

son?

THE DEFENDANT: Yes, sir.

[p. 3] THE COURT: Okay. The next question

then becomes what is to be done about it. The policy

statement | think in the case are 18 to 24 months. Did you

want to respond to that?

MR. PIPER: Thank you, Judge. I do think the

statutory maximum is also 24 months as well.

THE COURT: I think that’s right.

MR. PIPER: Class D felony. Your Honor, I’ve

had about three opportunities to speak with Mr. Johnson

since he was brought in last week. He’s a very bright

man. He has a bachelor’s degree I think from South

Carolina, is that correct?

THE DEFENDANT: Yes.

MR. PIPER: University of. I think his intentions

have always been to go straight here. I don’t know what

little glitch caught up with him, what little bump in the

road caught up with him, made him go to Newport

News, Virginia and do these things. He is genuinely sorry

that he did, not just for the fact that he got caught. He

intends, whatever happens here today, he knows he’s

going to get time, and he intends to go straight once he

does get out of here. He’s had previous difficulties with

the law and legal system. As I stated, Mi. Johnson has a

desire and the flesh is willing and I hope the will is there

to get out and go straight and get a job, further his

education.

[p. 4] THE COURT: Mr. Johnson, is there any-

thing that you want to say to the Court?

THE DEFENDANT: Yes, sir. Your Honor, you

know, I regret the choices that I made which have

brought me here today. And when I got out of prison the

last time I was very optimistic, Your Honor, very optimis-

tic about going back into the community, gaining stable

employment and getting on with my life. As a matter of

fact, while I was in the halfway house, I took a test with

the civil service, state civil service office in Georgia and I

scored a 95 on the senior caseworker exam. And I was

interviewed for the job after I left the halfway house and

a week after my interview I was offered the position and

they called my probation officer and told him that I had

been offered a position in Augusta and I would have to

transfer and I was all excited.

And, I mean, he’s not here to defend himself and I’m

not saying it’s his fault that I got in trouble, you know, I

could never say that because that would be irresponsible

and that would be passing the buck per se, but I called

him and told him and he contacted the Department of

Family and Children Services in Augusta and he went

into my criminal past. And, of course, I went into my

criminal past but not indepth during the interview. And,

of course, they called me back and subsequently said they

had to withdraw the offer.

[p. 5] And, you know, needless to say I felt crushed,

and I was devastated, but I can’t blame him for that. And,

of course, being arrested in Virginia and doing time there,

I mean, I regret all of that and I’m truly sorry for what I

did, but I look forward to the future also. I’ve already

started making plans to reenter graduate school once I’m

released from prison, what I plan is while I’m working in

Unicorp in prison, if I get to a halfway house, save money

there enough to get my foot in the door to pursue a

master’s degree in rehabilitation counseling at the Uni-

versity of South Carolina. If I weren’t standing here

today, I would still, I still plan to do that regardless of

what happens today, nothing is going to stop me from

doing that. I’m passionate about it. It’s something I really

want to do and it’s something I can feel myself doing

sincerely. That's all I’ve got to say.

THE COURT: Mr. MacCoon.

MR. MacCOON: Nothing to add, Your Honor.

Thank you.

THE COURT: Mr. Johnson, I remember you

were here the last time and I was optimistic at that time

because you are an intelligent person. You’ve got some

ability. But for some reason you keep doing the same type

of criminal offense. | mean, you’ve had a previous, now,

two previous federal convictions in addition to numerous

state convictions, and of [p. 6] course, you do have some

restitution yet to pay as a result of this offense, the

offense that you were convicted here of originally which,

you know, you're going to have to pay. I hope you can go

to graduate school, and I’m all for that, I encourage you

to do that, but, unfortunately, you do have a few obliga-

tions to meet too as well. We're faced here with, of

course, there is a need, at least a short one, to protect the

public from the kind of activity that you have engaged in.

I certainly hope that you will be able to keep this, keep

from doing this in the future and surely you can see that

this is a dead end street.

THE DEFENDANT: Yes, sir.

THE COURT: But, anyway, pursuant to the Sen-

tencing Reform Act of 1984, it is the judgment of the

Court that the defendant’s supervised release is revoked

and the defendant, Cornell Johnson, is hereby committed

to the custody of the Bureau of Prisons to be imprisoned

for a term of 18 months.

It is further ordered that the defendant shall pay

restitution, and I recognize you did pay some restitution.

THE DEFENDANT: Yes, sir, I did the best I

could, Your Honor.

THE COURT: You did pay some of it, but not

all of it.

THE DEFENDANT: Minimum wage jobs, I did

the best I could.

[p. 7] THE COURT: Right. Restitution amount

$286.96 to Food Lion, Incorporated, and 3,000 to Western

Union of Bridgeton, Missouri for a total of $3,286.96. This

figure represents the balance due on the restitution origi-

nally ordered in Case No. 1-93-CR-138. The restitution

shall be paid in full immediately through the United

States District Court.

Upon release from imprisonment, the defendant shall

be placed on supervised release for a term of 12 months.

Within 72 hours of release from the custody of the Bureau

of Prisons, the defendant shall report in person to the

probation office in the district to which you're released.

Within 72 hours, you understand?

THE DEFENDANT: Yes, sir. :

THE COURT: While on supervised release, the

defendant shall not commit another federal, state, or local

crime, shall comply with all the standard conditions that

have been adopted by this Court in its Local Rule 83.10,

and shall not illegally possess a controlled substance.

The defendant shall not possess a firearm as defined

in 18 U.S.C. 921.

There are some other special conditions of super-

vised release, drug testing, substance abuse testing at the

discretion of the probation officer, a program of mental

health treatment as directed by the probation officer. [p.

8] Paying your restitution. Access to any requested finan-

cial information by the probation officer.

And you would not open any new lines of credit or

obtain any credit without the approval of the probation

officer.

Any questions?

MR. PIPER: Judge, Mr. Johnson and I obviously

discussed once again the supervised release issue. |

would ask that the dispositional report be made a part of

the record and would note his original sentence as

reflected in the dispositional report is February 28th of

‘94. It’s a Class D felony. And I do believe Mr. Johnson,

and I discussed it with him yesterday, obviously, about

the ex post facto issue, and I would certainly hope that

the Supreme Court would decide this issue one of these

days.

THE COURT: Are you appealing all of these?

MR. PIPER: Unfortunately the last two I’ve sent

up have been very short briefs, mine are generally short

anyway. I feel like I have an obligation to do it, Judge.

THE COURT: Even though the law in the circuit

is clearly to the contrary?

MR. PIPER: Ms. Prewitt and I had a discussion

about that recently and I question whether or not |

should continue to do it, she believes that I should, so...

THE COURT: Okay. I mean, that’s fine.

[p. 9] MR. PIPER: We would ask -

THE COURT: I thought you all had something

better to do over there.

MR. PIPER: I have plenty more better to do. I

have plenty much to do, and I agree, but we would ask

the dispositional report be made a part of the record,

Your Honor, and raise that objection to the ex post facto

issue.

THE COURT: The dispositional report to be

made a part of the record?

MR. PIPER: For appeal, yes, sir. And the reason

why I ask for that is because the 6th Circuit, it’s generally

not a part of the record on appeal, and that’s the way that

I can get into evidence the fact that his conviction -

THE COURT: Okay.

MR. PIPER: Thank you.

THE COURT: It’s part of the record, so ordered,

let it be done. If you want to appeal this, Mr. Johnson, we

were just talking about that here, if you want to appeal

this, you can do so, discuss it with Mr. Piper, and a notice

of appeal has to be filed within 10 days to start that

process.

All right. Anything else? Okay. We'll be in recess

until 10 o'clock.

MR. PIPER: Thank you.

END OF REVOCATION HEARING

[p. 10] I, Shannan Andrews, do hereby certify that |

reported in machine shorthand the proceedings in the

above-styled cause held April 30, 1998, and that this

transcript is an accurate record of said proceedings.

/s/ Shannan Andrews

Shannan Andrews

Official Court Reporter

U.S. Probation Office

United States District Court

for the Eastern District of Tennessee

DISPOSITIONAL REPORT

Name of Offender: Cornell Johnson

Case Number: CR-1:93-138-002

Name of Sentencing Judicial Officer: Honorable R.

Allan Edgar

Date of Original Sentence: 02/28/94

Original Offense: Conspiracy to Produce, Use, and

Traffic in Counterfeit Access

Devices in violation of Title 18

U.S.C. § 1029(b)(2)

Class: D Felony

Criminal History Category: V

Original Sentence: Twenty-five month term of incarcer-

ation to be followed by a three year term of supervised

release with the following conditions: (1) The defendant

shall pay restitution in the amount of $663.96 to Food

Lion, Inc. of Salisbury, N.C., and $3,000 to Western Union

of Bridgeton, MO, for a total of $3663.96; (2) The defen-

dant shall provide the probation officer with access to

any requested financial information; (3) The defendant

shall not incur any new lines of credit or open additional

lines of credit without the approval of the probation

officer unless the defendant is in compliance with the

installment payment schedule; (4) The defendant shall

participate in a program of testing and/or drug treatment

as directed by the probation officer; (5) The defendant

shall participate in a program of mental health treatment

as directed by the probation officer.

Type of Supervision: Supervised Release

Date Supervision Commenced: 8/14/95

Date Supervision Expires: 08/13/98

Assistant U.S. Attorney: Gary Humble

Defense Attorney: Perry Piper

_———————————————————————————————_ ________

Violation Number Nature of Noncompliance

I VIOLATION OF GENERAL CONDITIONS OF

SUPERVISION: The defendant shall not commit

another federal, state, or local crime.

Il VIOLATION OF STANDARD CONDITION #1: The

defendant shall not leave the judicial district without

the permission of the Court or probation officer.

STATUTORY PROVISIONS: Title 18 U.S.C. § 3583(e)(3)

provides that the court may revoke a term of supervised

release and require the defendant to serve in prison all or

part of the term of supervised release authorized by

statute for the offense that resulted in such term of super-

vised release without credit for time previously served on

post release supervision, if it finds by a preponderance of

the evidence that the defendant violated a condition of

supervised release.

The defendant was originally convicted of a Class D

felony, therefore, upon revocation the court may not

impose a sentence of imprisonment greater than two

years. Also, pursuant to 18 U.S.C. § 3583(h), and the 1997

Sixth Circuit ruling in U.S. v. Page, 96-4329, the court may

reimpose supervised release after revocation, even in

cases in which the original crime occurred prior to enact-

ment of 18 U.S.C. § 3583(h), provided that any term of

imprisonment that the defendant is ordered to serve is

less than the maximum term of imprisonment authorized

by statute under 18 U.S.C. § 3583(e)(3). If supervised

release is reimposed in this case the statute sets a maxi-

mum term of 3 years.

POLICY STATEMENT/GUIDELINE PROVI-

SIONS: Mr. Johnson’s violations consist of Grade B vio-

lations as defined in U.S.S.G. Pursuant to 7B1.3(a)(1),

upon a finding of a Grade B violation, the court shall

revoke supervised release.

With a Criminal History Category of V and Grade B

violations, in accordance with U.S.S.G. § 7B1.4(a), Mr.

Johnson’s range of imprisonment is 18-24 months.

U.S.S.G. § 7B1.3 provides that where supervised release is

revoked and the term of imprisonment imposed is less

than the maximum term of imprisonment imposable

upon revocation, the court may include a requirement

that the defendant be placed on a term of supervised

release upon release from imprisonment. The length of

such a term of supervised release shall not exceed the

term of supervised release authorized by statute for the

offense that resulted in the original term of supervised

release, less any term of imprisonment that was imposed

upon revocation of supervised release.

Pursuant to U.S.S.G. § 7B1.3(d) any restitution previously

imposed in connection with the sentence for which

revocation is ordered that remains unpaid shall be

ordered to be paid in addition to the sanctions deter-

mined under § 7B1.4 (Term of Imprisonment). The

offender has an outstanding restitution balance of

$3,286.96.

HISTORY OF SUPERVISION/COMPLIANCE WITH

CONDITIONS: Mr. Johnson's supervision term com-

menced on August 18, 1995. He was on supervision for

only seven months before violating the conditions of his

supervision by engaging in criminal conduct which sub-

sequently resulted in his being convicted on new felony

and misdemeanor charges, and being sentenced to a term

of imprisonment in Virginia. Additionally, Mr. Johnson

traveled outside the jurisdiction of his supervision with-

out the permission of his probation officer as is evidenced

by his arrest in March 1996 in Newport News, Virginia.

Prior to the above-cited violations, the offender appeared

to be in compliance with his supervision conditions,

including his monthly restitution payment schedule of

$50. He did, however, experience some difficulty main-

taining steady, stable employment.

COURT ACTION TO DATE:

Mr. Johnson was arrested in March 1996, in Newport

News, Virginia on a total of ten counts of Fraud and

Uttering charges. He was convicted in the Circuit Court

of Newport News, Virginia on July 25, 1996 for the

offenses of Forgery (Docket No. 33726-96), and Uttering

(Docket No. 33725-96). He was sentenced to a ten year

term of imprisonment for each law violation. The court

suspended the execution of nine years of his sentence for

the offense of Forgery and nine and one-half years for the

offense of Uttering.

The offender was also convicted on July 26, 1996 in the

Newport News General District Court for the offenses of

Obtaining Money by False Pretense (Docket No.

96-005237), and Larceny by False Pretense (Docket No.

96-005239). He was sentenced to serve a 12-month jail

term on each charge. The remaining criminal charges

against the offender in Newport News, Virginia were

nolle prosequi.

The offender was in the custody of the State of Virginia

until his release to the supervised release detainer on

March 31, 1998. A removal hearing was held in Newport

News that date, at which time the Court ordered that Mr.

Johnson be returned to the Eastern District of Tennessee

to answer to the charge of violating his conditions of

supervised release.

On April 24, 1998, the offender appeared before Magis-

trate John Y. Powers in the Eastern District of Tennessee

for a preliminary hearing at which time he was ordered to

be detained pending a revocation hearing. Mr. Johnson is

scheduled to appear for a revocation hearing on May 30,

1998 at 9:30 a.m. before U.S. District court Judge R. Allan

Edgar.

Respectfully submitted,

/s/ Angela W. Hayes

Angela W. Hayes

U.S. Probation Officer

eee eo

APPROVED:

/s/ Leslie A. Cory 4/28/98

Leslie A. Cory Date

Supervising U.S. Probation Officer

VIOLATION WORKSHEET

1. DEFENDANT

Cornell Johnson

2. DOCKET NUMBER (Yr/Sequence Def. No.)

cr-1-93-138-002

3. DISTRICT / OFFICE

Eastern District of Tennessee - Chattanooga

4. ORIGINAL SENTENCE DATE

02/28/94

(if different from above):

5. ORIGINAL DISTRICT /OFFICE

Eastern District of Tennessee - Chattanooga

ORIGINAL DOCKET NUMBER (Yr/Sequence Def.

0.)

Same

7. List each violation and determine the applicable

grade (See 7B1.1):

Violations Grade

1. The defendant shall not commit another federal,

state, or local crime. B

10.

11.

The defendant shall not leave the judicial district

without the permission of the Court or probation

officer. Cc

Most Serious Grade of Violation (See 7B1.1(b)): B

Criminal History Category (See 7B1.4(a)): Vv

Range of Imprisonment (See 7B1.4(a)): 18-24 months

Sentencing Options for Grade B and C Violations

Only:

(CHECK APPROPRIATE BOX)

(A) If the minimum term of imprisonment

determined under 7B1.4 (Term of Imprison-

ment) is at least one month but not more

than six months, 7B1.3(c)(1) provides sen-

tencing options to Imprisonment.

(B) If the minimum term of imprisonment

determined under 7B1.4 (Term of Imprison-

ment) is more than six months but not more

than ten months, 7B1.2(c)(2) provides sen-

tencing options to imprisonment.

determined under 7B1.4 (Term of Imprison-

ment) is more than ten months, no sentenc-

ing options to imprisonment are available.

|><

DEFENDANT Cornell Johnson

12.

Unsatisfied Conditions of Original Sentence

List any restriction, fine, community confinement,

home detention, or intermittent confinement previ-

ously imposed in connection with the sentence for

which revocation is ordered that remains unpaid or

unserved at the time of revocation (See 7B1.3(d)):

13.

14.

15.

Restitution $3,386.96

Community Confinement

Fine $

Home Detention

Other

Intermittent Confinement

Supervised Release

If probation is to be revoked, determine the length, if

any, of the term of supervised release according to

the provisions of 5D1.1-1.3 (See 7B1.3(g)(1)).

Term to years

If supervised release is revoked and the term of

imprisonment imposed is less than the maximum

term of imprisonment imposable upon revocation,

the defendant may, to the extent permitted by law,

be ordered to recommense supervised release upon

release from imprisonment (See 18:3583(e) and

7B1.3(g)(2)).

Period of supervised release to be served following

release from imprisonment:

Up to 36 months less any term of imprisonment

imposed provided that the term of imprison-

ment is less than 24 months.

Departure

List aggravating and mitigating factors that may

warrant a sentence outside the applicable range of

imprisonment:

Official Detention Adjustment (See 7B1.3(e)):

months days.

UNITED STATES DISTRICT COURT

Eastern District of Tennessee at Chattanooga

UNITED STATES JUDGMENT IN A

OF AMERICA CRIMINAL CASE

Vv. (Filed May 1, 1998)

Cornell Johnson (For Revocation of Probation or

Supervised Release)

(For Offenses Committed On or

After November 1, 1987)

Case Number: 1:93CR00138-002

Perry H. Piper

Defendant's Attorney

THE DEFENDAN::

[X] admitted guilt to violation of condition(s) #1 and

general cond. of the term of supervision.

{ ] was found in violation of condition(s) after

denial of guilt.

Date

Violation Nature of Violation

Number Violation Occurred

1 The defendant failed to com- 03/03/1996

ply with the condition that

he not commit another fed-

eral, state, or local crime.

2 The defendant failed to com- 03/03/1996

ply with the condition that

he not leave the judicial dis-

trict without the permission

of the Court or probation

officer.

The defendant is sentenced as provided in pages 2

through 6 __ of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

[ ] The defendant has not violated condition(s)

and is discharged as to such violation(s) condition.

IT IS FURTHER ORDERED that the defendant shall

notify the United States Attorney for this district within

30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

Defendant’s Soc. Sec. No.: 04/30/1998

250-04-0337 Date of Imposition of

Defendant’s Date of Birth: Judgment

05/09/1954

/s/ R. Allen Edgar

Signature of Judicial

Officer

pi nec » Rasitenee R. ALLAN EDGAR

845 North Central Avenue United States District

#615 Judge

Name & Title of Judicial

Hapevill GA 30354 Officer

Defendant’s USM No.:

84669-071

Defendant’s Mailing May 1, 1998

Address: Date

845 North Central Avenue

#615

Hapevill GA 30354

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for

aterm of 18 month(s)

[ ] The court makes the following recommendations to

the Bureau of Prisons:

[X] The defendant is remanded to the custody of the

United States Marshal.

[ ] The defendant shall surrender to the United States

Marshal for this district:

{ } at a.m./p.m. on ;

[ ] as notified by the United States Marshal.

{ ] The defendant shall surrender for service of sen-

tence at the institution designated by the Bureau of

Prisons:

[ ] before 2 p.m. on

{ ] as notified by the United States Marshal.

[ ] as notified by the Probation or Pretrial Services

Office.

RETURN

I have executed this judgment as follows:

et ate es nal

- se

Defendant delivered on to at

, with a certified copy of this judgment.

UNITED STATES MARSHAL

Deputy U.S. Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of 12 month(s).

The defendant shall report to the probation office in

the district to which the defendant is released within 72

hours of release from the custody of the Bureau of

Prisons.

The defendant shall not commit another federal, state, or

local crime.

The defendant shall not illegally possess a controlled

substance.

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful

use of a controlled substance. The defendant shall

submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug

tests thereafter, as directed by the probation officer.

_[ ] The above drug testing condition is suspended

based on the court’s determination that the

defendant poses a low risk of future substance

abuse. (Check, if applicable.)

[X] The defendant shall not possess a firearm as defined

in 18 U.S.C. § 921. (Check, if applicable.)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of supervised

release that the defendant pay any such fine or resti-

tution that remains unpaid at the commencement of

the term of supervised release in accordance with the

Schedule of Payments set forth in the Criminal Mon-

etary Penalties sheet of this judgment.

The defendant shall comply with the standard condi-

tions that have been adopted by this court (set forth

below). The defendant shall also comply with the addi-

tional conditions on the attached page (if indicated

below).

See Special Conditions of Supervision - Page 4

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

2) the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

3) the defendant shall answer truthfully all inquiries

by the probation officer and follow the instructions

of the probation officer;

4) the defendant shall support his or her dependents

and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occu-

pation unless excused by the probation officer for

schooling, training, or other acceptable reasons;

el ani rge e Cepe lint

eRe Os wth ee ee

10)

11)

12)

13)

the defendant shall notify the probation officer ten

days prior to any change in residence or employ-

ment;

the defendant shall refrain from excessive use of

alcohol;

the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distrib-

uted, or administered;

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless

granted permission to do so by the probation officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view by the probation officer;

the defendant shall notify the probation officer

within seventy-two hours of being arrested or ques-

tioned by a law enforcement officer;

the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

enforcement agency without the permission of the

court;

as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant's criminal record or per-

sonal history or characteristics, and shall permit the

probation officer to make such notifications and to

confirm the defendant's compliance with such noti-

fication requirement.

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program of testing

and treatment for drug and alcohol abuse as directed by

the probation officer, until such time as the defendant is

released from the program by the probation officer.

The defendant shall participate in a program ot mental

health treatment as directed by the probation officer.

The defendant shall pay any restitution that remains

unpaid at the commencement of the term of supervi-

sion.

The defendant shall provide the probation officer with

access to any requested financial information.

The defendant shall not incur any credit charges or

open additional lines of credit without the approval of

the probation officer.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal mon-

etary penalties in accordance with the schedule of pay-

ments set forth on Sheet 5, Part B.

Assessment Fine Restitution

Totals: $ $ aS 3,286.96

[ ] If applicable, restitution amount

ordered pursuant to plea agreement

vodccevtcovesesteue $

ee so oes

Leek ie te ome _— =

FINE

The above fine includes costs of incarceration and/or

supervision in the amount of $

The defendant shall pay interest on any fine of more

than $2,500, unless the fine is paid in full before the

fifteenth day after the date of judgment, pursuant to 18

U.S.C. § 3612(f). All of the payment options on Sheet 5,

Part B may be subject to penalties for default and delin-

quency pursuant to 18 U.S.C. § 3612(g).

{ ] The court determined that the defendant does not

have the ability to pay interest and it is ordered that:

[ ] The interest requirement is waived.

{ ] The interest requirement is modified as fol-

lows:

RESTITUTION

| ] The determination of restitution is deferred

. An Amended Judgment in a Criminal

Case will be entered after such a determination.

[X] The defendant shall make restitution to the follow-

ing payees in the amounts listed below.

If the defendant makes a partial payment, each payee

shall receive an approximately proportional payment

unless specified otherwise in the priority order or per-

centage payment column below.

Priority

*Total Amount of Order or

Name of Amount Restitution Percentage

Payee of Loss Ordered of Payment

Western

Union $3,000.00 $3,000.00

Food Lion,

Incorporated $286.96 $286.96

Totals: $ 3,286.96 $ 3,286.96

* Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18 for

offenses committed on or after September 13, 1994 but

before April 23, 1996.

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment; (2) restitution; (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal mone-

tary penalties shall be due as follows:

A [X] in full immediately; or

B[i] $ immediately, balance due (in accor-

dance with C, D, or E); or

C [] _ not later than ; or

D { ] _ in installments to commence day(s) after

the date of this judgment. In the event the

entire amount of criminal monetary penalties

imposed is not paid prior to the commence-

ment of supervision, the U.S. probation officer

shall pursue collection of the amount due, and

shall request the court to establish a payment

schedule if appropriate; or

Et] in (e.g. equal, weekly, monthly, quarterly)

installments of $ over a period of __

year(s)tocommence _ day(s) after the date of

this judgment.

The defendant will receive credit for all payments

previously made toward any criminal monetary penalties

imposed.

Special instructions regarding the payment of criminal

monetary penalties:

Payments shall be made to: U.S. DISTRICT COURT, 800

MARKET ST., SUITE 130, KNOXVILLE, TN 37902

[ ] The defendant shall pay the cost of prosecution.

{ ] The defendant shall forfeit the defendant’s interest

in the following property to the United States:

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment imposes a

period of imprisonment payment of criminal monetary

penalties shall be due during the period of imprisonment.

All criminal monetary penalty payments, except those

payments made through the Bureau of Prisons’ Inmate

Financial Responsibility Program are to be made as

directed by the court, the probation officer, or the United

States attorney.

No. 98-5664

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF

AMERICA,

)

Plaintiff-Appellee,

Vv. )

)

CORNELL JOHNSON,

Defendant-Appellant.

Before: MARTIN, Chief Judge; BOGGS and COLE,

Circuit Judges.

Cornell Johnson, represented by counsel, appeals a

district court judgment imposing a new term of super-

vised release, following the revocation of his original

term of supervised release. The parties have expressly

waived oral argument, and this panel unanimously

agrees that oral argument is not needed. Fed. R. App. P.

34(a).

In 1994, Johnson pleaded guilty to conspiring to

defraud, produce, use, and traffic in one or more counter-

feit access devices, in violation of 18 U.S.C. § 1029(b)(2).

The district court sentenced him to twenty-five months of

imprisonment, plus three years of supervised release.

While on supervised release, Johnson committed various

state law offenses in Virginia, and he left the judicial

district without permission. During a revocation hearing,

Johnson admitted that he had violated the terms of his

original supervised release, and the district court sen-

tenced him to eighteen months of imprisonment, plus

twelve months of supervised release. Johnson has filed a

timely appeal, arguing that the new term of supervised

release violates the Ex Post Facto Clause.

Upon review, we conclude that the district court

properly sentenced Johnson. See United States v. Lloyd, 10

F.3d 1197, 1220 (6th Cir. 1993), cert. denied, 511 U.S. 1043

and 1146 and 513 U.S. 883 (1994). Johnson’s sentence does

not violate the Ex Post Facto Clause. In order for a

statutory modification of punishment to run afoul of the

Ex Post Facto Clause: 1) the statute must apply retroac-

tively to past conduct; and 2) the statute must work to the

prejudice or disadvantage of the defendant. See Miller v.

Florida, 482 U.S. 423, 430 (1987). This court has rejected

Johnson’s argument, concluding that the application of

§ 3583(h) does not violate the Ex Post Facto Clause. See

United States v. Abbington, 144 F.3d 1003, 1005 (6th Cir.),

cert. denied, 119 S. Ct. 344 (1998); United States v. Page, 131

F.3d 1173, 1175 (6th Cir. 1997), cert. denied, 119 S. Ct. 77

(1998). Although several other circuits have concluded

that the application of § 3583(h) does violate the Ex Post

Facto Clause, see United States v. Lominac, 144 F.3d 308,

312-16 (4th Cir. 1998); United States v. Dozier, 119 F.3d 239,

242-44 (3d Cir. 1997); United States v. Collins, 118 F.3d

1394, 1397-99 (9th Cir. 1997); United States v. Meeks, 25

F.3d 1117, 1119 (2d Cir. 1994), these cases are not control-

ling authority in this circuit.

Accordingly, we affirm the district court’s judgment.

ENTERED BY ORDER OF

THE COURT

/s/ Leonard Green

Clerk

United States

ON PETITION FOR WRIT OF CERTIORARI to the United

States Court of Appeals for the Sixth Circuit.

ON CONSIDERATION of the motion for leave to

proceed herein in forma pauperis and of the petition for

writ of certiorari, it is ordered by this Court that the

motion to proceed in forma pauperis be, and the same is

hereby, granted; and that the petition for writ of certiorari

be, and the same is hereby, granted.

October 18, 1999

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.